Plaintiff was a 29 year old passenger in a car traveling south on Evergreen Mill Road near the intersection of Tolbert Lane in Loudoun County, Virginia. The defendant, a delivery truck driver, was on a side street in his delivery truck waiting to cross Evergreen Mill Road. As the plaintiff’s friend pulled into the left hand turn lane on Evergreen Mill Road, the defendant proceeded into the intersection and crashed into the passenger side of the car where plaintiff was sitting. Due to the side impact, plaintiff hit her head on the seatbelt anchor beside the door. The police charged the defendant with reckless driving.

The delivery company accepted liability on behalf of its driver.

The plaintiff had dizziness, nausea, and headaches shortly following the crash and went to Loudoun Hospital Center for examination. The emergency room physician diagnosed a concussion, neck sprain, and lumbar sprain. The plaintiff went back to her primary care physician for neck pain that radiated down her right upper extremity, an inability to focus, and soreness in the area of her right sacroiliac joint. Over the next few months, the plaintiff suffered headaches and short term memory loss causing difficulty with her college classes studying to be a registered nurse. Although she attended physical therapy, she continued to experience pain in her right hip. An MRI arthrogram done revealed a right hip superior labral tear. The plaintiff underwent surgical consultations with two surgeons, Dr. Derek Ochiai and Dr. Michael Kavanagh. Dr. Kavanagh advised the plaintiff to wait approximately eighteen months from the time of the injury to heal before considering surgical intervention.

The plaintiff graduated from nursing school with excellent grades despite not being able to finish her classes during the quarter in which she was hit. She moved to California after graduation. The plaintiff continued her treatment and underwent a surgical evaluation with Dr. Mark Safran at UCSF Sports Medicine in San Francisco. After performing the evaluation, Dr. Safran told the plaintiff that surgery was the best option to relieve her constant hip pain. Dr. Safran performed a right hip arthroscopy and partial labrectomy on the plaintiff. After a year of physical therapy and recovery, the plaintiff was only at about 90% of her original functional level in her right leg.

The case was mediated with the Hon. Kathleen MacKay (retired). The plaintiff presented well at the mediation and testified about the effect of her injuries on her active lifestyle, including mountain biking, hiking, surfing, and yoga. The case settled three months after mediation for $350,000.

Please note that case results depend upon a variety of factors unique to each case. Past successful case results do not guarantee or predict future results.

Car Crash Injuries

If I have been in a car crash, should I still pay my medical bills?

A:

Yes. You are responsible for making sure your medical bills are paid on time and non-payment of medical bills will hurt your credit rating. If the car crash is not your fault, in many cases there are three different sources of insurance to reimburse you for your medical bills: 1) your own health insurance policy; 2) your own auto insurance policy; and 3) the at-fault party’s auto insurance policy. If premiums were paid for each of these types of coverage and they apply to your case, then you should submit your bills to all three starting with health insurance.

If you have health insurance, we suggest that all of your health care providers submit their charges to your health insurance company. However, you will still owe co-pays, deductibles, and unpaid amounts to the medical care providers for the services they rendered. Those providers may refer you to a collection agency if you do not communicate with their offices or pay outstanding bills in a timely manner. In the event your health insurance company denies a claim submitted by a healthcare provider, you must also file a timely appeal, usually by following the instructions printed on the Explanation of Benefits (EOB) form you were sent detailing why the claim was denied.

If you do not have health insurance or you do not have the means to pay anything on your medical bills—even small co-payments—you or your lawyer may try to negotiate an “assignment of benefits” with your doctor. “Assignment of benefits” means that any amounts owed to a doctor or medical facility must be paid directly from your settlement proceeds or money you receive in a judgment. In exchange, the doctor or medical facility agrees to wait until the resolution of your claim to be paid and not send you to collections. Whether or not a health care provider agrees to this arrangement is his or her choice and they may not accept assignments.

If I have signed a release for the insurance company, do I need to follow it?

A:

A release is a document that an insurance company may ask you to sign which basically says that you agree to accept their settlement offer and that you promise not to sue them for more money after they grant you a settlement. The Virginia Code allows you to rescind, or “get out of” such a release in certain circumstances.

§8.01-425.1 of the Virginia Code, the Right of Release; Right of Rescission states:

When a claimant or plaintiff executes a release of liability as a condition of settlement in a claim or action for personal injury within thirty days of the incident giving rise to such claim, such claimant or plaintiff shall have a right of rescission until midnight of the third business day after the day on which the release was executed, provided that he was not represented by counsel when the release was executed, the rescission was made in writing to the person or persons being released, their representative or insurance carrier, and the claimant returns to the person or persons being released any check or settlement proceeds received by the claimant prior to the rescission. A release of liability executed within thirty days of the incident giving rise to the claim for personal injury by a person who is not represented by counsel shall contain a notice of the claimant's or the plaintiff's right to rescind conspicuously and separately stated on the release.

As stated above, a release is not binding if it is signed within 30 days of the accident which caused the injuries; you are not represented by an attorney at the time you sign the release; written notice is given to the insurance company that asked you to sign the release within three days after the release was signed; and you return any check or settlement money that you received from the insurance company. If all of these conditions are met, you may rescind, or get out of, a release that you have signed.

If the accident/crash was my fault, will I be able to obtain a recovery? Can I get my medical bills paid?

A:

If the crash was your fault, you may still be entitled to some insurance proceeds, depending on what coverage you have.

Liability insurance only pays where the insurance company feels that the driver they insure could be held liable for negligence in court. The idea behind liability insurance is that it protects someone who was at fault from a judgment. Another way of saying that is that the liability insurance carrier pays for the judgment rather than the negligent driver paying out of his or her own pocket, so long as the judgment does not exceed the liability insurance policy limit. For example, if you paid for collision coverage, your own insurer must pay you for the repair or replacement of your vehicle—this is an optional coverage that you would have paid additional money for.

Medical expense coverage, or “Medpay,”is a no-fault medical insurance coverage you may have chosen as an option on your car insurance policy. If you have it, fault is irrelevant—your insurer must pay for your automobile crash-related medical bills, up to the amount of coverage you have under that policy (typically between $2,000 and $5,000).

Health insurance is also a no-fault insurance coverage. If you have health insurance, you are entitled to have your medical bills paid by your health insurance carrier regardless of whether or not you caused the crash that caused your injuries.

Why is my own automobile insurance policy important when the car crash was not my fault?

A:

First, sometimes the other driver’s insurance company will not take responsibility for what the negligent driver did. If that is the case, and you have collision coverage for your automobile, you do not need to deal with the defendant’s insurance company for your property damage. Because you paid for collision coverage, you can seek reimbursement for the repair or replacement cost of your automobile under your own policy. If you wish to pursue the claim through your own policy, do not let your own insurer tell you that you have to go through the defendant’s insurance. Denial of a valid claim should be reported to the Virginia Bureau of Insurance at (http://www.scc.virginia.gov/division/boi/).

Second, a valuable form of auto insurance many people have but are not aware of is medical expense payment coverage (“Medpay”) which is a no-fault type of coverage. If you have Medpay, you may submit medical bills incurred as a result of a car crash to your own auto insurance company and be paid directly for those expenses up to the limits on your policy. In addition, you may also have your health insurance pay the same bills. This is because you have paid additional money in premiums for optional coverage. Medpay may not be coordinated with health insurance (see the Answer to Question 4, above).

Lastly, your auto policy may work as additional coverage in the event the at-fault party has little or no coverage to pay for your full damages. This type of coverage is mandatory in Virginia and is called uninsured motorist coverage (UIM).

What is the difference between a car crash and a car accident?

A:

Often insurance companies call a car crash “an accident” when their negligent driver hits someone who was obeying the rules. In fact, the “accident” is a car crash, and even the Virginia State Police and the Department of Motor Vehicles title their reports of such incidents as Crash Reports.

True accidents are very rare. The hallmark of a true accident is that everyone was acting appropriately, and despite a reasonable level of care on the part of all involved, the accident still happened. An example of a true accident is when a driver who, despite obeying the posted speed limit, and paying attention to the road and surroundings, wrecks his or her car when a deer runs out in front of them.

Car crashes, by comparison, are avoidable and were caused by someone who was not following the rules of the road by driving reasonably or paying attention to what they were doing. Some people forget that automobiles are fast moving pieces of heavy metal machinery that can maim or even kill people. The risks associated with speeding, aggressive driving, drunk driving, texting while driving, and other forms of unreasonable driving can be disastrous. Serious injuries can result from crashes including a fractured pelvis, broken arm or broken leg, broken hip, ligament tears, rotator cuff injury, traumatic brain injury, coma, paralysis, or death. Unfortunately there are too many careless drivers on our highways that fail to follow the rules and cause injury.

Do I need to hire an attorney if Ive been injured in a car crash?

A:

Whether or not you need to hire an attorney depends on fault, insurance coverage, and the extent of your injuries.

Many people have small “fender-benders” and walk away injury free. Likewise, some people are injured and the injury resolves itself within just a few weeks with little or no medical intervention. As a rule of thumb, if you were involved in a small “fender-bender” and had only minor pain or injuries, you can try to initially handle the claim yourself. In many instances we will tell people that they are better off handling their own claim for one reason or another.

However, there are also people involved in “fender-benders” who suffer a traumatic brain injury, a whiplash type of soft tissue injury or other life-changing injuries. Remember: minimum visible damage to a vehicle does not necessarily mean that there is a minimal injury.

The complexity of modern day litigation and medicine— and the unwillingness of insurance companies to pay a fair price for the sometimes horrible and life-changing injuries that people suffer at the hands of negligent drivers—makes it more likely that you will need to hire a lawyer if you have suffered major injuries in a car crash. Simply put, the more disastrous your injury, the less likely it is that you will get a reasonable and fair resolution from an insurance company without hiring a lawyer. The best course of action when your injuries are serious or when your bills are starting to add up is to seek the informed opinion of an experienced personal injury attorney. The insurance companies will always have a lawyer, why shouldn’t you?

Following my car crash, I was told by the hospital/doctors office that instead of my health insurance my automobile insurance would provide primary coverage for my injuries. Is this correct?

A:

In Virginia, the answer to this question is usually “no.”

Choosing whether to submit medical bills to one insurance policy versus another is called “coordination of benefits.” Virginia law prohibits coordination of benefits when it comes to auto insurance coverage. Make sure your health care provider bills your health insurance first if you have health insurance. If the doctor’s office refuses, you need to submit those claims yourself before enough time goes by that you may no longer submit claims under your health insurance policy. Most health policies have websites where you can download the appropriate forms and submit claims yourself. If the medical provider claims that insurance will not pay for an auto-related injury, ask them to bill your health insurance carrier or call your insurance company and find out. If the insurance company denies your claim, you can always appeal the denial. In the event you do file an appeal, you may need to hire a lawyer to represent you. Our office can assist you in locating a lawyer with experience filing claims with your insurance company.

Wrongful Death

What are Virginia's laws in wrongful death cases?

A:

In Virginia, an action for wrongful death is a creature of statute and may be found in the Code of Virginia, § 8.01-50, et seq. (1950, as amended). This Virginia law defines the statutory beneficiaries of the decedents as well as the categories of damages available in Virginia for the wrongful death of an individual. Wrongful death actions must be initiated by a "personal representative" of the deceased (i.e., a family member who has qualified at the Clerk of the Court's office), within two years of the death. For more information about wrongful death law in Virginia, contact Barbara Williams, P.C. today.

What is a statutory beneficiary?

A:

Any of the deceased’s family members listed in Virginia Code § 8.01-53, directly above, to whom damages from a wrongful death lawsuit may be distributed are the statutory beneficiaries.

Who are the beneficiaries in a wrongful death case?

A:

The beneficiaries are defined by Virginia Code § 8.01-53 as follows:

A. The damages awarded pursuant to § 8.01-52 shall be distributed as specified under § 8.01-54 to (i) the surviving spouse, children of the deceased and children of any deceased child of the deceased or (ii) if there be none such, then to the parents, brothers and sisters of the deceased, and to any other relative who is primarily dependent on the decedent for support or services and is also a member of the same household as the decedent or (iii) if the decedent has left both surviving spouse and parent or parents, but no child or grandchild, the award shall be distributed to the surviving spouse and such parent or parents or (iv) if there are survivors under clause (i) or clause (iii), the award shall be distributed to those beneficiaries and to any other relative who is primarily dependent on the decedent for support or services and is also a member of the same household as the decedent or (v) if no survivors exist under clause (i), (ii), (iii), or (iv), the award shall be distributed in the course of descents as provided for in § 64.1-1. Provided, however, no parent whose parental rights and responsibilities have been terminated by a court of competent jurisdiction or pursuant to a permanent entrustment agreement with a child welfare agency shall be eligible as a beneficiary under this section. For purposes of this section, a relative is any person related to the decedent by blood, marriage, or adoption and also includes a stepchild of the decedent. B. The class and beneficiaries thereof eligible to receive such distribution shall be fixed (i) at the time the verdict is entered if the jury makes the specification, or (ii) at the time the judgment is rendered if the court specifies the distribution. C. A beneficiary may renounce his interest in any claim brought pursuant to § 8.01-50 and, in such event, the damages shall be distributed to the beneficiaries in the same class as the renouncing beneficiary or, if there are none, to the beneficiaries in any subsequent class in the order of priority set forth in subsection A. (Code 1950, §§ 8-636.1, 8-638; 1954, c. 333; 1973, c. 401; 1974, c. 444; 1977, cc. 460, 617; 1979, c. 356; 1992, c. 74; 1994, c. 515; 2003, c. 632.)

Who hires the attorney in a wrongful death case?

A:

The Administrator of the Estate is the plaintiff in the lawsuit. Although frequently many beneficiaries are represented by a single attorney in a wrongful death suit, each beneficiary has the right to their own attorney if they have opposing interests. The Administrator would be the actual plaintiff in the wrongful death lawsuit.

What is a wrongful death case?

A:

“Wrongful death” is a cause of action, or lawsuit, for negligence, gross negligence, or recklessness that causes the death of another person. It can arise in the context of an automobile crash, or it could be the result of medical malpractice, or something else entirely. Wrongful death is defined by the Code of Virginia and the damages recoverable in a wrongful death suit are determined by the law. See Virginia Code §8.01-50 et seq. at http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+8.01-50.

Why does someone need to qualify as the administrator or executor of the estate?

A:

The administrator of the estate has the authority to hire a lawyer and file suit in a wrongful death case. When someone dies, it may be the result of medical malpractice, a car crash, or some other horrible event. Our laws are designed to compensate the family of the deceased for the grief and suffering over the loss of the deceased person in the event that the death was caused by someone else’s carelessness or negligence. A deceased person can no longer fend for his rights, but his family may hold accountable those that negligently or carelessly caused his death.

It is the administrator who “stands in the shoes” of the deceased victim and vindicates his or her rights, so that the negligent party must face the consequences of what he or she has done. By doing so, not only is the family compensated for their grief, but additionally the rest of us are made safer. Those that cause the death of another must face the consequences of their actions regardless of the fact that the victim of their negligence is not around to fend for his or her rights.

What does it mean to qualify as administrator or executor of a persons estate?

A:

The circuit court clerk’s office can appoint a qualified applicant to be the personal representative of another person’s estate.

Traumatic Brain Injury (TBI)

What are the symptoms of a brain injury?

A:

In many cases of brain injury, the extent of the injury is difficult to determine by simply observing, especially in mild traumatic brain injuries. Brain injuries may be manifest in physical, cognitive and/or emotional changes in the victim. Physical signs of a brain injury may include diminished capacity in speech, hearing, vision or endurance. Fatigue, frequent headaches, spasms or paralysis may also be signs of a brain injury. Cognitive signs of a brain injury may include reductions in concentration, attention, perception, planning, writing and reading skills, short and long term memory, and orientation. Behavioral signs of a brain injury may include excessive mood swings, depression, sexual dysfunction or agitation. Many people with brain injuries say that their "personality" changes. If you are experiencing any of these conditions, or are observing them in a loved one, you should visit a healthcare professional immediately.

Medical Malpractice

What are the most common grounds for medical malpractice claims?

A:

Medical malpractice is defined as a violation in the standard of care by a doctor, nurse or other healthcare professional. Some of the most common examples of medical malpractice and negligence include damages caused by incorrect diagnoses, incorrect surgical procedures, delay of treatment, and medication errors. However, if there is any situation where the patient is suffering from unexpected side effects, illnesses, or disabilities after receiving medical attention, this should be brought to the attention of an attorney. If you have questions about your legal rights, you should speak with an attorney as soon as possible.

How can I report my doctor if I feel that malpractice has occurred?

A:

The Virginia Board of Medicine (http://www.dhp.state.va.us/medicine/) handles claims of wrongdoing by physicians. They may institute an investigation and take disciplinary actions against a doctor if they feel that a claim has merit. You can file a complaint against a healthcare provider by calling (800) 533-1560.

Will my doctor lose his license to practice medicine if a civil lawsuit is filed?

A:

No. If the suing party prevails, the sole remedy in a civil action is an award of money for damages.

General

I dont think the insurance company is offering enough money to fix my car. What should I do?

A:

How much you get may depend on whether you are seeking reimbursement under the collision portion of your auto policy or whether you are dealing directly with the defendant’s insurance company.

If your car is not totaled, generally you are entitled to the cost of reasonable repairs and associated expenses (such as a reasonable rental car payment), as well as the diminution value of your car in its repaired state. “Diminution” is the difference between what the car was worth right before the crash and what it is worth once fixed. Note that under nearly all collision policies in Virginia, your own insurer will exclude diminution from the amount they have to pay you. Therefore, under your collision coverage you would get the cost of reasonable repairs, but you do not get the difference in market value of your car (the value of the car before the crash minus the value of the car as repaired). Usually if you want to get the diminution value, you will need to do so through the defendant’s liability insurance company if someone else was at fault for the damage.

In contrast, if your car has been totaled, or is a total loss, you are entitled to use the National Automobile Dealers Association (NADA) yellow or black book to assess the market value of your car. You are only entitled to recover the value of your car, not the full amount of money you borrowed to purchase the car. You are not entitled to have your entire car loan paid off as much of that loan may have been interest and your car has likely depreciated in value since its purchase.

There is no exact answer, but many suits consider the various types of damage that the victim has suffered. Among them are medical bills, lost wages, lost future earnings, pain and suffering, emotional damages, and punitive damages.

Can you guarantee that I will win my case?

A:

There are no guarantees in the courtroom. In fact, any attorney that guarantees a successful verdict is acting unethically.